State v. Tyner

• Decision Date: 23 August 1979
• Docket Number: No. 21040,21040
• Citation: 273 S.C. 646,258 S.E.2d 559
• Parties: The STATE, Respondent, v. Rudolph TYNER, Appellant.
• Court: South Carolina Supreme Court

Page 559

258 S.E.2d 559

273 S.C. 646

The STATE, Respondent, v. Rudolph TYNER, Appellant.

No. 21040.

Supreme Court of South Carolina.

Aug. 23, 1979.

Richard N. Booth and Eldridge R. Inman, Conway, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Brian P. Gibbes and Kay G. Crowe, Columbia Sol. Harry G. Charles, Conway and Sol. Donald V. Myers and Asst. Sol. Cameron Littlejohn, Lexington, for respondent.

NESS, Justice:

Appellant Rudolph Tyner was found guilty of criminal conspiracy, armed robbery, and murder and was sentenced to death. We affirm his conviction and set aside the death sentence.

On March 18, 1978, Mr. and Mrs. William B. Moon were shot and killed during the armed robbery of their convenience store near Myrtle Beach. Appellant and Carlton Davis were arrested at the Davis home, approximately one mile from the store, in the early morning hours of March 19th. A shotgun linked to the murders was seized. Tyner subsequently gave police a statement admitting the crimes.

Appellant raises numerous exceptions to his conviction, all of which we have concluded are without merit.

(1) Appellant asserts the trial judge erred in failing to grant his motion for a change of venue. He contends the pretrial publicity of the crime and the local sentiment surrounding the incident precluded the holding of a fair trial in Horry County. We disagree.

Motions for change of venue are addressed to the sound discretion of the trial judge, and his decision will not be reversed absent an abuse of discretion. State v. Valenti, 265 S.C. 380, 218 S.E.2d 726 (1975); State v. Neeley, 271 S.C. 33, 244 S.E.2d 522 (1978). Moreover, the burden is on the moving party to show that prospective jurors have been influenced by pretrial publicity. State v. Fowler, 266 S.C. 203, 222 S.E.2d 497 (1976); State v. Swilling, 249 S.C. 541, 155 S.E.2d 607 (1967).

We conclude the evidence was insufficient to establish that pretrial publicity foreclosed appellant's opportunity for a fair trial. Only one of the witnesses testified that in his opinion, appellant would not receive a fair trial in Horry County. The newspaper articles submitted were four months old, and none contained inflammatory or prejudicial matter.

The trial court acted properly in denying appellant's motion for a change in venue.

(2) Appellant argues the trial court erred in denying his motion to sequester all the State's witnesses. He asserts that hearing the testimony of other witnesses afforded an opportunity for comparison in influence.

A motion to sequester rests in the sound discretion of the trial judge. State v. Jackson, 265 S.C. 278, 217 S.E.2d 794 (1975); State v. Hall, 268 S.C. 524, 235 S.E.2d 112 (1977). When questioned by the trial judge, appellant was unable to explain how failure to sequester the witnesses would prejudice him. We conclude the trial court's decision was proper.

(3)Appellant argues the trial court erred in excusing Willie V. Stover, a member of the jury venire, from service on the basis of his opposition to capital punishment.

The following colloquy occurred between the defense attorney, the court, and Mr. Stover:

"Q. Mr. Stover, are you for or against the death penalty in South Carolina?

"A. Do I have to answer that?

"THE COURT: Yes, Sir. Just answer yes or no, are you for it or against it?

"A. I'm against it." (Tr. p. 408).

"THE COURT: Are there any circumstances under the law for which you would vote for the death penalty?

"A. I would say yes." (Tr. p. 409).

Upon cross-examination, the following discussion took place between the solicitor and Mr. Stover:

"Q. If evidence was presented to you in this case of aggravation and aggravating circumstances, would you vote to give the defendant the death penalty?

"A. Say that to me again.

"Q. After all the evidence in the case where the state presents its testimony from witnesses on that stand and where the defense presents testimony from witnesses from that stand and that evidence justified the death penalty, based on that evidence could you vote to give the defendant the death penalty?

"A. No." (Tr. p. 410).

We conclude this questioning process, when viewed in its entirety, demonstrates the prospective juror's unwillingness to vote for the death penalty under any circumstances, regardless of the facts proved. The process was consistent with the standards established in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and its progeny. Therefore, it was not error for the trial court to excuse the prospective juror for cause. Moreover, in light of our reversal of appellant's death sentence, this exception is moot.

(4) Appellant contends it was error for the trial court to permit the prosecution to examine certain jurors after appellant exhausted his peremptory strikes and waived voir dire. We disagree.

The method and scope of voir dire is within the trial court's discretion. State v. Dawkins, 268 S.C. 110, 232 S.E.2d 228 (1977). The record does not reveal that appellant objected to the continuation of voir dire after waiving it, or that appellant was prejudiced thereby. Accordingly, this argument is without merit.

(5)Appellant asserts the trial court erred in permitting a forensic pathologist to give his opinion concerning the distance of the shotgun blast and the absence of powder burns on the clothing of Mr. Moon. Appellant concedes a forensic pathologist may testify about cause of death, angle of wounds, entry and exit of bullets, and the like, but contends that only a ballistics expert can testify about distance and lack of powder burns. Regarding the prejudicial effect of the testimony appellant states at page 12 of his brief: "The effect upon the jury of this testimony during deliberation can only be surmised and is pure conjecture at this point." We hold the trial court acted within its discretion in allowing the testimony. See 23 C.J.S. Criminal Law, § 868, pp. 426-431; Moenssens, Moses and Inbau, Scientific Evidence in Criminal Cases, p. 181 (1976); State v. Watkins, 259 S.C. 185, 191 S.E.2d 135 (1972).

(6)Appellant asserts the court erred in allowing Exhibits 1, 2, 3 and 4 into evidence. The disputed exhibits were:

(1) wadding removed from the body of Mr. Moon;

(2) pellets removed from the body of Mr. Moon;

(3) wadding removed from the body of Mrs. Moon;

(4) pellets removed from the body of Mrs. Moon.

A trial has wide discretion in the admissibility of evidence. State v. Quillien, 263 S.C. 87, 207 S.E.2d 814 (1974); State v. Pruitt, 260 S.C. 396, 196 S.E.2d 107 (1973). The challenged exhibits were properly identified and relevant; therefore they were correctly admitted into evidence.

(7) Appellant next argues the trial court erred in allowing the State, over defense objection, to pose a leading question, and thereafter, in refusing to allow the defense, upon cross- examination, to inquire into the witness' justification for her feelings about the appellant.

Appellant objected to the following question by the solicitor as leading: "Q. Did you ever have any difficulty communicating with Mr. Tyner or he with you?" (Tr. p. 545). The trial judge overruled the objection and held the question was not leading.

A leading question is one which suggests to the witness the desired answer. State v. Cook, 204 S.C. 295, 28 S.E.2d 842 (1944); Wigmore, Evidence, Vol. III, § 769, p. 122 (1940). As the question propounded by the solicitor was not suggestive of an answer, it was not leading. Moreover, a trial court has broad discretion in the scope of questions permissible. State v. Outen, 237 S.C. 514, 118 S.E.2d 175 (1961); State v. Davis, 267 S.C. 283, 227 S.E.2d 662 (1976). In order to require reversal, appellant must show an abuse of discretion resulting in prejudice. Smith v. Union-Buffalo Mills Company, 100 S.C. 115, 84 S.E. 422 (1914); State v. Davis, 239 S.C. 280, 122 S.E.2d 633 (1961). Neither has been shown here.

Appellant also argues the trial court erred in restricting his cross-examination of the witness, Jan Cimo, daughter-in-law of the Moons. Appellant complains he was precluded from questioning Ms. Cimo as to her possible bias or prejudice against him when the trial judge refused to allow a response to the following question: "You sure you aren't saying that now just to justify your reason for saying something about him . . ." (Tr. p. 567).

As appellant's counsel's question was argumentative and was preceded by numerous questions in the same vein, the trial court did not abuse its discretion in refusing to permit the question. See State v. Weaver, 265 S.C. 130, 217 S.E.2d 31 (1975).

(8)Appellant asserts the trial court erred in allowing into evidence the check of appellant, cashed at the Moon store one day before the crime.

Again, the trial court has wide discretion in the admission of evidence. State v. Pruitt, supra; State v. Anderson, 253 S.C. 168, 169 S.E.2d 706 (1969). The fact that Tyner had made purchases at the Moon store was relevant and not prejudicial; moreover, the evidence was cumulative to other evidence indicating appellant was familiar with the store. There was no error in allowing the check into evidence.

(9) Appellant excepts to the trial court allowing the solicitor to inquire on redirect about (a) the room in the Davis residence where appellant slept; (b) the general layout of the Davis house; (c) who shared the room with appellant; and (d) the location where the shotgun was found.

The extent of redirect is subject to the trial court's discretion. State v. Barrs, 257 S.C. 193, 184 S.E.2d 708 (1971), cert. den. 406 U.S. 907, 92 S.Ct. 1615, 31 L.Ed.2d 818; McCormick, Evidence, 2d Ed., § 32, p. 64 (1972). Further, appellant has failed to show how this latitude in redirect was prejudicial. This has no merit.

(10)Appellant contends the trial court erred in sustaining the solicitor's objection to portions of the cross-examination of witnesses Hunt and Causey, Horry County police officers. Hunt...